Fairfield takes heat for banning employees from insulting town or co-workers on social media

Poll Question

AUGUSTA, Maine — The American Civil Liberties Union of Maine has sent a letter to the town of Fairfield asking it to repeal its policy that bars employees from posting anything on social media that could make the town look bad.

The policy was adopted after an employee was disciplined for making insulting comments on social media about another employee and is an effort to ensure a productive, harmonious working environment, Town Manager Joshua Reny said Wednesday.

The policy prohibits employees from using their personal social media profiles to post anything “that would impair working relationships of the town of Fairfield for which loyalty and confidentiality are important, impede the performance of duties, impair discipline and harmony among co-workers, or negatively affect the public perception of the town of Fairfield and its departments.”

Because the policy is so sweeping, it may prevent employees from communicating information that is legally protected, said Oamshri Amarasingham, public policy counsel for the ACLU of Maine, in the letter to Reny.

“Criticism of government activity is precisely the type of speech protected by the First Amendment,” wrote Amarasingham. “When a public employee speaks as a citizen on a matter of public concern, that speech is protected and cannot be the basis for discipline.

“The town’s prohibition of any Internet speech that casts a negative light on the town authorizes punishment of a substantial amount of protected speech and is therefore unconstitutionally overbroad,” she wrote.

Aside from the Whistleblower Protection Act and the National Labor Relations Act — which shields employees from disciplinary action as a result of collective action, such as forming a union — public employees do face some legal restrictions on their speech, said Peter Scheer, executive director of the California-based First Amendment Coalition.

Public employees can be barred from trash-talking their employers or creating a hostile work environment, for example. They also can be disciplined for disseminating information that must remain private. But they are protected from prohibitions against talking about matters of “public concern.”

That sounds vague, so think of it this way, Scheer said:

Government employers “can restrict sort-of childlike behavior, force people to be more civil with each other in the workplace, but they have to do it carefully,” he said, adding that it’s useful to think of social media rules the same as face-to-face rules.

“If employees were yelling at each other across a crowded room, hurling insults at each other all day long, that could be disruptive to the workplace,” he said. “Any employer has the right to do something about that.”

But when the government attempts to make rules about its employees’ speech, it must be narrowly tailored so as not to prevent protected speech, he said.

“The employer really has to draw his or her red lines fairly clearly, and not just forbid something as vague as ‘inappropriate’ expression or similarly hard-to-define terms,” Scheer said. “The consequence of that uncertainty is that employees can censor themselves from saying things that they are protected by the Constitution to say.”

Reny said it was never the town of Fairfield’s intention to drastically limit its employees’ speech, and that he will bring the ACLU’s letter to the Town Council at its next meeting.

“The ACLU is reading some of the language, and they see it as very vague, and say it could be interpreted to mean the employee can’t do something,” he said. “That was not the town’s intent when it adopted this policy. If it needs to be amended to clarify, if things can be misinterpreted or are too broad, that’s something we’ll have to look at.”

Reny said he understands that employees’ right to discuss “serious issues” must be protected, but he defended the policy’s goal, which he said was to “make sure there is harmony among co-workers.”

“When people are calling each other names, and things like that are happening, it’s not a legitimate concern,” he said. “It’s just people sniping at each other and public officials.”